This is an action for personal injuries arising out of a railroad crossing accident at the McDuff Avenue grade crossing in Jacksonville, Florida in 1975. The collision at the crossing was between the Auto-Train, a train operated by the Auto-Train Corporation ("Auto-Train Corp."), and a car driven by Sara H. Thompson ("Thompson"). The plaintiffs, Freda and Hyman Lerner ("the Lerners") who are husband and wife, were passengers aboard the train. The train was being operated over tracks owned and maintained by defendant, Seaboard Coast Line Railroad Company ("Seaboard").

Jurisdiction is properly founded upon diversity of the citizenship of the parties. 28 U.S.C. § 1332 (1982). On January 4, 1984 the Court held a hearing on two motions. In one motion the defendant sought a pretrial determination whether certain deposition testimony was admissible pursuant to Federal Rule of Evidence ("F.R.E.") 804.
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By the other motion, the defendant sought an order pursuant to Federal Rule of Civil Procedure ("Rule") 56 granting the defendant summary judgment on the ground that there is no issue of material fact and Seaboard is entitled to judgment as a matter of law.

At the hearing defendant argued that the Court should admit into evidence the deposition testimony of the three train crew members -- Engineer Jarrell, Brakeman Stapler and Fireman Keeling -- and the deposition testimony of Thompson and two witnesses -- Police Officer Jones ("Officer Jones") and Mr. William Osborne ("Osborne").
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Three of the six individuals, Thompson, Keeling and Stapler, are now deceased. Their depositions were taken during the course of two prior actions which were commenced by the passenger-plaintiffs in Florida state court. The depositions of the three other individuals, Jarrell, Officer Jones, and Osborne, were taken in Florida by the parties to this action. During the course of the hearing in January the Court ruled that the deposition testimony of all six individuals was admissible. See discussion infra. In light of this ruling the Court reserved decision on the motion for summary judgment pending further review of the material submitted to the Court. Having reviewed this material, the Court grants summary judgment for the defendant.

BACKGROUND

Plaintiffs here allege that they sustained injuries when the Auto-Train in which they were travelling stopped suddenly as its emergency brake was applied. While the nature of the injuries allegedly sustained is not clear from the record, plaintiffs state that when the train stopped they were thrown from their seats against various objects in the car of the train. From the materials submitted to the Court, which include the deposition testimony, exhibits, and photographs of the accident scene, the following facts emerge. On the morning of October 17, 1975 the Lerners were passengers aboard the Auto-Train, a train that carried passengers and cars from Lorton, Virginia to West Palm Beach, Florida. Auto-Train Corp. and the defendant, Seaboard, were parties to an Operating Agreement pursuant to which Seaboard provided equipment, crews and right-of-way for the carriage-for-hire of passengers and automobiles for a period of years including the date of the accident.

At approximately 7:40 A.M. on the 17th, a train crew consisting of Engineer Jarrell, Brakeman Stapler and Fireman Keeling boarded the Auto-Train at the McQuade Street stop in Jacksonville, Florida and relieved the previous crew. Jarrell Deposition ("Dep.") at 6; Keeling Dep. at 7-10; Stapler Dep. at 5-6. With Engineer Jarrell in the right front seat of the lead engine, Brakeman Stapler in the left front seat, and fireman Keeling in the seat immediately behind Stapler, the train left McQuade Street at a speed of approximately 15 miles per hour. Jarrell Dep. at 7-9; Keeling Dep. at 7-12; Stapler Dep. at 5-8. The day was clear and sunny. Jones Dep. at 31.

The distance between McQuade Street and the McDuff Avenue grade crossing, the site of the accident, is approximately one and one-half miles. The tracks are straight for approximately one mile before the McDuff Avenue crossing and traverse some six grade crossings. Jarrell Dep. at 7-9, 11-12, 20-21; Keeling Dep. at 10-12. After passing the first two or three grade crossings, the train's speed was increased from 15 to 25 miles per hour in accordance with the posted speed limits. Keeling Dep. at 9-12; Stapler Dep. at 8-9; Jarrell Dep. at 9-10. En route from McQuade Street to the McDuff Avenue grade crossing the crew was observing the tracks in front of the train, and Engineer Jarrell sounded the train's bell and horn for the three grade crossings before the McDuff Avenue grade crossing. Jarrell Dep. at 9-12; Stapler Dep. at 6-8, 11-12; Keeling Dep. at 21-22.

The McDuff Avenue grade crossing, which is depicted in the Appendix, can be described as follows. The avenue runs in a north/south direction. At the point it crosses the Seaboard right-of-way there is a double set of tracks running in a northeasterly and southwesterly direction. Directly south of the rail line, parallel to it, is Roosevelt Boulevard, a four-lane, divided arterial. Approximately 50 feet to the northeast of the McDuff Avenue crossing is another railroad crossing -- the Post Street crossing. Post Street runs in an east/west direction and intersects with Mcduff Avenue north of the rail lines. Approximately 1200 yards farther to the northeast from the crossing, an expressway overpass crosses the tracks. At the Post Street/McDuff Avenue intersection, Plymouth Avenue begins and runs southwesterly parallel to the rail lines on the north side.

At the time of the accident the McDuff Avenue grade crossing had railroad crossbuck signs with warning bells and flashing lights synchronized to warn traffic of approaching trains. Additionally, in the middle of McDuff Avenue, above the track, a set of flashing lights were set up to alert traffic of approaching trains.The traffic control signals at the intersection of McDuff Avenue and Roosevelt Boulevard were sychronized with the other signals to control traffic and prevent it from turning onto the McDuff Avenue grade crossing. All of the signals were in place and were functioning properly on the morning of October 17, 1975. Jones Dep. at 6-7, 9-14, 17, 45-47, 49-50; Jarrell Dep. at 14-15; Osborne Dep. at 7-10; Stapler Dep. at 13-14.

According to Mr. Osborne, a nearby resident, an individual standing on McDuff Avenue at the grade crossing could look up the tracks and see a distance of approximately 1200 yards. Osborne Dep. at 8. Thompson stated that at the intersection of McDuff Avenue and Roosevelt Boulevard -- the intersection immediately before the tracks, if one is driving north -- an occupant of a vehicle could observe the tracks up to the expressway overpass and that no obstructions or trees interfered with a clear view of the tracks at the McDuff Avenue grade crossing. Thompson Dep. at 25-26. Officer Jones stated that "I would say the tracks are pretty clear." Jones Dep. at 40.

Brakeman Stapler testified that from the engine the McDuff Avenue grade crossing could be observed from the Edison Street grade crossing a substantial distance up the tracks, Stapler Dep. at 12, and that no visual obstructions exist at the McDuff Avenue grade crossing which interfere with visibility. Stapler Dep. at 14-15, 16, 28.

As the Auto-Train was approaching the McDuff Avenue grade crossing from the northeast on the morning of October 17, Engineer Jarrell was sounding the train's bell and horn for the three grade crossings before it, and he continued to sound the bell and horn for approximately 20 to 30 seconds before coming to the McDuff Avenue grade crossing. Jarrell Dep. at 9-10; Stapler Dep. at 28; Keeling Dep. at 21-22, 31; Jones Dep. at 7, 42, 49-50, 48-59; Osborne Dep. at 7-8, 10, 12.

At the same time the Auto-Train was approaching the McDuff Avenue crossing, Thompson, a 47-year-old elementary school teacher, was also heading toward the crossing. At Park Street in Jacksonville she turned onto McDuff Avenue and headed north toward her school. Having driven this way daily for approximately two months, she was familiar with the route and the McDuff Avenue crossing. Thompson Dep. at 5-10, 20, 23.Thompson drove her automobile, which was in good working condition, Thompson Dep. at 10, across Roosevelt Boulevard and stopped a safe distance from the railroad tracks to "honor" a red traffic light on the other side of the railroad tracks at the intersection of McDuff Avenue and Post Street. Thompson Dep. at 11.

As the Auto-Train proceeded southwesterly Engineer Jarrell, Brakeman Stapler, and Fireman Keeling observed the tracks in front of them, each keeping a careful lookout as the train approached the different grade crossings along the route. Stapler Dep. at 6-8, 11-12; Keeling Dep. at 15; Jarrell Dep. at 10-12. The train approached the McDuff Avenue crossing on the tracks closest to Roosevelt Boulevard. Brakeman Stapler, who had the best visibility of the Roosevelt Boulevard side of the tracks from his seat in the locomotive, Stapler Dep. at 6-8, saw Thompson's car approaching the crossing on McDuff Avenue. At this time the train was approximately 100 feet from the crossing. Thompson's car was halfway between Roosevelt Boulevard and the closest track. It was moving very slowly, perhaps ten miles per hour. Stapler Dep. at 17-20, 21, 29.Fireman Keeling who was sitting right behing Stapler also noticed Thompson's car moving slowly toward the tracks. Keeling Dep. at 20-23, 30, 36-38. Both Keeling and Stapler stated that they believed that the Thompson vehicle would come to a stop before going onto the tracks, and thus, neither told the engineer to beware or to stop. Stapler Dep. at 20; Keeling Dep. at 37. Stapler stated, "[S]he was going slow enough that I thought she was stopping. I thought she could have stopped any time she touched the brake." Stapler Dep. at 19-20. When Stapler "finally decided she wasn't going to stop . . . [w]hen she got to where we would hit her . . . I yelled at the engineer" to place the train into an emergency brake condition. Stapler Dep. at 19. See also Keeling Dep. at 22-23, 25-26; Jarrell Dep. at 13, 17-18. Engineer Jarrell immediately placed the train into "Big Hold" to stop it as quickly as possible. He stated that he "had a glimpse of [Thompson's car] before, before it was struck." Id. at 17. Both Keeling and Stapler stated that the train was within approximately 50 feet of the car when they realized that it was about to pull in front of the train. Stapler Dep. at 21; Keeling Dep. at 22-23, 25, 26. Stapler also stated that the Thompson vehicle came to a stop immediately before the train hit the car.Stapler Dep. at 28. After striking the car the train travelled approximately 350 feet. Jarrell Dep. at 14.

Thompson's deposition testimony basically corroborates the statements made by the train crew concerning her movements immediately before the collision. She stated that after having stopped a reasonable distance from the railroad tracks for the red traffic light at Post and McDuff, Thompson Dep. at 15, she began to move slowly forward toward the tracks when the light turned green. She stated that she did not recall hearing bells or whistles or seeing any flashing railroad warning lights. Nor did she recall looking up or down the tracks before proceeding. Thompson Dep. at 13-14, 28, 30. Thompson ...

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